When a couple is divorcing tensions often run high and this can make sharing a residence unpleasant in the least and dangerous in the worst circumstances. Most clients are surprised to find out that one party doesn’t have to leave the home just because there is an action for divorce pending.
The courts are cognizant of the fact that while parties are divorcing they might not want to be around each other, but often times it’s a financial necessity that they share the home in order to keep expenses at a minimum.
The courts are also reluctant to kick someone out of their home because they know that these situations usually become permanent, and absent some harm befalling the other spouse or the children it’s not fair to by default award one of the parties the marital home without a trial on the merits.
The standard that must be met before a Probate & Family Court Judge will require one of the parties to leave the marital home is found in M.G.L. ch. 208 § 34B, and is as follows:
”the health, safety, or welfare of the moving party or any minor children residing with the parties would be endangered or substantially impaired by a failure to enter such order.”
This is a reasonably high standard to meet, and is typically only done after a hearing on the merits, which requires the filing of a motion with a minimum of three days notice to the other side.
If an order to vacate the martial home is granted it is technically only good for 90 days. Often, however, the party who was forced to vacate decides voluntarily to remain living elsewhere.
If you are considering filing a motion to vacate to get your spouse out of the marital home you should at least consult a family law attorney who can review the facts of your situation to give you an idea of you have met the standard articulated above, because if you don’t meet the standard and you bring the motion anyway it’s going to make living with your spouse that much more difficult and could undermine your credibility in front of the judge.
If you are considering filing a motion like this please contact us for a free 30 minute consultation.